IN THE CASE OF:	  

		BOARD DATE:  17 September 2013

		DOCKET NUMBER:  AR20130002445 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his record to show he was promoted to sergeant (SGT)/E-5 prior to his discharge by reason of disability.

2.  The applicant states:

	a.  While in the military, he was given documentation to sign from his unit several times from the Department of Defense for his promotion to E-5 for time in service.  From there, the unit commander needed to sign off on the document for him to be awarded his E-5.  Due to unfortunate circumstances, he had filed complaints against the unit for mistreatment.  He had notified his mental health counselors, who were treating him for post-traumatic stress disorder (PTSD) from combat.  Within the last year leading up to the last 3 months of his military career in 2007, he was subject to stop-loss because his unit was being activated to deploy to Iraq for its second tour for 15 months.  Due to his injuries, he was declared non-deployable.

	b.  He had called his congressman and the Wounded Warriors hotline to complain and prevent this deployment.  Because he was a so-called "Whistle Blower," the unit felt that he was a disgrace to them.  A senior medical commander that was in charge of his medical treatment had made several calls to the unit to let them know he was non-deployable.  This only angered the unit for going over the chain of command; therefore, he was not given the opportunity to receive his stripes.  The unit made sure he never got it.  In his platoon alone, he was one of the senior specialists who should have been promoted.  Most of the new Soldiers who were placed in the platoon were promoted before him when they deployed to Iraq in November 2007.

	c.  He worked hard throughout his military career to be the best Soldier he could be, with no disciplinary action, no records of negative counseling, and he had great reactions and comments from the brigade commander at the time.  He feels he deserves that promotion.  He tried the Department of Veterans Affairs (VA) hospital as well as the Disabled American Veterans near his home town to see if there was anything that they could do; however, no one had an answer for him.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army (RA) on 9 June 1999.  He was honorably discharged on 15 March 2000 under the provisions of Army Regulation 635-200, paragraph 5-18 by reason of a condition, not a disability.

3.  On 7 October 2003, he again enlisted in the RA.  He held military occupational specialties 21E (Heavy Construction Equipment Operator) and
14S (Avenger Crewmember).  He attained the rank/grade of specialist (SPC)/E-4 effective 30 December 2004.

4.  He served in Kuwait/Iraq from 15 June 2004 to 13 June 2005. 

5.  It appears at some stage the applicant entered the Army Physical Disability Evaluation System (PDES).  In October 2007, an informal physical evaluation board (PEB) convened and found his medical condition of low back pain 

prevented him from performing the duties required of his grade and specialty and determined he was physically unfit.

6.  He was rated under the VA Schedule for Rating Disabilities (VASRD) and granted a 10 percent disability rating.  The PEB recommended the applicant be separated with entitlement to severance pay if otherwise qualified.  He appears to have concurred with the PEB's findings and recommendation.

7.  Orders 313-0027, issued by Headquarters, National Training Center, Fort Irwin, CA, dated 9 November 2007, ordered his release from active duty because of physical disability with a 10 percent disability rating.  The standard name line listed his rank as "SPC."

8.  On 31 December 2007, he was discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) by reason of physical disability with severance pay.  His DD Form 214 shows in:

* item 4a (Grade, Rate or Rank):  "SPC"
* item 4b (Pay Grade):  "E-4"
* item 12i (Effective Date of Pay Grade):  "2004  12  30"

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from active duty by reason of disability with entitlement to severance pay on 31 December 2007.  His DD Form 214 listed his rank/grade and effective date of pay grade as SPC/E-4 and 30 December 2004, respectively.

2.  There is no evidence of record and he provides none that shows he appeared before a promotion board, that his name was approved to be added on his unit promotion standing list, or that he met the monthly cut-off scores for promotion to SGT prior to his discharge from active duty.  The applicant provides insufficient evidence to show he was improperly not recommended for promotion by his chain of command.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130002445



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ABCMR Record of Proceedings (cont)                                         AR20130002445



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